Less than Family: Surrogate Birth and Legal Parent-Child Relationships in Japan

Japan has no legislation regulating artificial reproductive technology. In surrogate birth, social parents may only register a legal relationship with the child in the Japanese family register, the koseki, using the three current categories of parent-child relationship in Japanese family law: natural, ordinary adoption and special adoption. In 2007, Japan’s Supreme Court dashed the hopes of Japanese actress Aki Mukai and her husband, former pro-wrestler Nobuhiko Takada, of registering twins born through surrogacy as their natural children. The Supreme Court’s decision means that the only option for social parents of children born through surrogate birth to establish a legal parent-child relationship is to adopt the child under the laws governing special and ordinary adoption in Japan. However, ordinary adoptive and special adoptive children have inferior legal rights compared to natural children, including in relation to their registration in the koseki and their right to Japanese nationality. Analysing Japanese law on parenthood and the Supreme Court’s decision in Mukai’s case using critiques of the nuclear family ideology reveals that Japanese law determines the existence of a legal parent-child relationship by birth for the mother and marriage to the birth mother for the father, reinforcing the nuclear family ideology. While parent-child relationships based on contract are possible in Japan, these relationships do not have the same legal and social character as parent-child relationships based on blood. The value attached to blood relationships in Japanese law is reflected in society. Members of Japanese society make negative value judgments about the character of adopted children, which can lead to stigma and discrimination against adopted children. The koseki registers adopted and natural children differently, and thus promotes social discrimination based on these differences. Surrogate birth children who are adopted are potentially exposed to the same social stigma and discrimination as adopted children, even if they are related to their social parents genetically. This article critiques assumptions based on the modern family ideology underlying Japanese law and evaluates the socio-legal role of the koseki in causing surrogate birth children to suffer discrimination and exclusion in Japan. The article concludes that establishing legal parent-child relationships in surrogate birth only by adoption is not in the best interests of surrogate birth children, or their birth and social parents. The article aims to stimulate consideration in other countries about the assumptions underlying the law on parent-child relationships and about how adoption law affects surrogate birth children. MELISSA AHLEFELDT ZJAPANR / J.JAPAN.L 96